Florida Senate - 2023                      CS for CS for SB 1342
       
       
        
       By the Committees on Rules; and Criminal Justice; and Senators
       Martin and Book
       
       
       
       
       595-03708-23                                          20231342c2
    1                        A bill to be entitled                      
    2         An act relating to capital sexual battery; amending s.
    3         794.011, F.S.; revising how certain capital felonies
    4         are punished; requiring that specified procedures be
    5         followed to determine a sentence of death or life
    6         imprisonment without the possibility of parole in
    7         specified capital felony cases; requiring a prosecutor
    8         to give certain notice if he or she intends to seek
    9         the death penalty; providing notice requirements;
   10         creating s. 921.1425, F.S.; providing legislative
   11         findings and intent; requiring a court to conduct a
   12         separate sentencing proceeding to determine whether a
   13         defendant should be sentenced to death or life
   14         imprisonment without the possibility of parole upon
   15         the defendant’s conviction or adjudication of guilt
   16         for a capital felony; providing proceeding
   17         requirements; authorizing the presentation of certain
   18         evidence during such proceedings; requiring a jury to
   19         make specified determinations, findings, and
   20         recommendations; requiring a recommendation to the
   21         court of a sentence of death if at least eight jurors
   22         determine that the defendant should be sentenced to
   23         death; requiring a recommendation to the court of a
   24         sentence of life imprisonment without the possibility
   25         of parole if fewer than eight jurors determine that
   26         the defendant should be sentenced to death; requiring
   27         the court to impose the jury’s recommended sentence if
   28         the recommendation is for a sentence of life
   29         imprisonment without the possibility of parole;
   30         authorizing the court to impose a sentence of life
   31         imprisonment without the possibility of parole or a
   32         sentence of death if the recommended sentence is for
   33         death; authorizing the court to impose a sentence of
   34         death only if the jury unanimously finds at least two
   35         aggravating factors beyond a reasonable doubt;
   36         requiring a court to enter a written order addressing
   37         specified information; specifying that a judgment of
   38         conviction and sentence of death is subject to
   39         automatic review by the Florida Supreme Court;
   40         specifying aggravating factors; specifying mitigating
   41         circumstances; authorizing the prosecution to
   42         introduce and argue victim impact evidence to the
   43         jury; providing construction; providing applicability;
   44         amending s. 924.07, F.S.; authorizing the state to
   45         appeal from a sentence on the grounds that it resulted
   46         from the failure of the circuit court to comply with
   47         specified sentencing procedure requirements; amending
   48         ss. 921.137 and 921.141, F.S.; conforming provisions
   49         to changes made by the act; providing an effective
   50         date.
   51          
   52  Be It Enacted by the Legislature of the State of Florida:
   53  
   54         Section 1. Paragraph (a) of subsection (2) of section
   55  794.011, Florida Statutes, is amended, and paragraph (c) of
   56  subsection (8) of that section is republished, to read:
   57         794.011 Sexual battery.—
   58         (2)(a) A person 18 years of age or older who commits sexual
   59  battery upon, or in an attempt to commit sexual battery injures
   60  the sexual organs of, a person less than 12 years of age commits
   61  a capital felony, punishable as provided in ss. 775.082 and
   62  921.1425. In all capital felony cases under this section, the
   63  procedure set forth in s. 921.1425 must be followed in order to
   64  determine a sentence of death or life imprisonment without the
   65  possibility of parole. If the prosecutor intends to seek the
   66  death penalty, the prosecutor must give notice to the defendant
   67  and file the notice with the court within 45 days after
   68  arraignment. The notice must contain a list of the aggravating
   69  factors the state intends to prove and has reason to believe it
   70  can prove beyond a reasonable doubt. The court may allow the
   71  prosecutor to amend the notice upon a showing of good cause ss.
   72  775.082 and 921.141.
   73         (8) Without regard to the willingness or consent of the
   74  victim, which is not a defense to prosecution under this
   75  subsection, a person who is in a position of familial or
   76  custodial authority to a person less than 18 years of age and
   77  who:
   78         (c) Engages in any act with that person while the person is
   79  less than 12 years of age which constitutes sexual battery, or
   80  in an attempt to commit sexual battery injures the sexual organs
   81  of such person commits a capital or life felony, punishable
   82  pursuant to subsection (2).
   83         Section 2. Section 921.1425, Florida Statutes, is created
   84  to read:
   85         921.1425 Sentence of death or life imprisonment for capital
   86  sexual battery; further proceedings to determine sentence.—
   87         (1)LEGISLATIVE FINDINGS AND INTENT.—
   88         (a)The Legislature finds that a person who commits a
   89  sexual battery upon, or in an attempt to commit sexual battery
   90  injures the sexual organs of, a person less than 12 years of age
   91  carries a great risk of death and danger to vulnerable members
   92  of this state. Such crimes destroy the innocence of a young
   93  child and violate all standards of decency held by civilized
   94  society. The Legislature further finds that Buford v. State of
   95  Florida, 403 So. 2d 943 (Fla. 1981), was wrongly decided, and
   96  that Kennedy v. Louisiana, 554 U.S. 407, (2008), was wrongly
   97  decided, and that such cases are an egregious infringement of
   98  the states’ power to punish the most heinous of crimes.
   99         (b)It is the intent of the Legislature that the procedure
  100  set forth in this section shall be followed, and a prosecutor
  101  must file a notice, as provided in s. 794.011(2)(a), if he or
  102  she intends to seek the death penalty.
  103         (2) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.—Upon
  104  conviction or adjudication of guilt of a defendant of a capital
  105  felony under s. 794.011, the court must conduct a separate
  106  sentencing proceeding to determine whether the defendant should
  107  be sentenced to death or life imprisonment as authorized by s.
  108  775.082. The proceeding must be conducted by the trial judge
  109  before the trial jury as soon as practicable. If, through
  110  impossibility or inability, the trial jury is unable to
  111  reconvene for a hearing on the issue of penalty, having
  112  determined the guilt of the accused, the trial judge may summon
  113  a special juror or jurors as provided in chapter 913 to
  114  determine the issue of the imposition of the penalty. If the
  115  trial jury has been waived, or if the defendant pleads guilty,
  116  the sentencing proceeding shall be conducted before a jury
  117  impaneled for that purpose, unless waived by the defendant. In
  118  the proceeding, evidence may be presented as to any matter that
  119  the court deems relevant to the nature of the crime and the
  120  character of the defendant and must include matters relating to
  121  any of the aggravating factors enumerated in subsection (7) and
  122  for which notice has been provided pursuant to s. 794.011(2)(a)
  123  or relating to any of the mitigating circumstances enumerated in
  124  subsection (8). Any such evidence that the court deems to have
  125  probative value may be received, regardless of its admissibility
  126  under the exclusionary rules of evidence, provided the defendant
  127  is accorded a fair opportunity to rebut any hearsay statements.
  128  However, this subsection may not be construed to authorize the
  129  introduction of any evidence secured in violation of the United
  130  States Constitution or the State Constitution. The state and the
  131  defendant or the defendant’s counsel must be permitted to
  132  present arguments for or against a sentence of death.
  133         (3) FINDINGS AND RECOMMENDED SENTENCE BY THE JURY.—This
  134  subsection applies only if the defendant has not waived his or
  135  her right to a sentencing proceeding by a jury.
  136         (a) After hearing all of the evidence presented regarding
  137  aggravating factors and mitigating circumstances, the jury must
  138  deliberate and determine if the state has proven, beyond a
  139  reasonable doubt, the existence of at least two aggravating
  140  factors set forth in subsection (7).
  141         (b) The jury must return findings identifying each
  142  aggravating factor found to exist. A finding that two
  143  aggravating factors exist must be unanimous. If the jury:
  144         1. Does not unanimously find at least two aggravating
  145  factors, the defendant is ineligible for a sentence of death.
  146         2. Unanimously finds at least two aggravating factors, the
  147  defendant is eligible for a sentence of death and the jury must
  148  make a recommendation to the court as to whether the defendant
  149  must be sentenced to life imprisonment without the possibility
  150  of parole or to death. The recommendation must be based on a
  151  weighing of all of the following:
  152         a. Whether sufficient aggravating factors exist.
  153         b. Whether aggravating factors exist which outweigh the
  154  mitigating circumstances found to exist.
  155         c. Based on the considerations in sub-subparagraphs a. and
  156  b., whether the defendant should be sentenced to life
  157  imprisonment without the possibility of parole or to death.
  158         (c) If at least eight jurors determine that the defendant
  159  should be sentenced to death, the jury’s recommendation to the
  160  court must be a sentence of death. If fewer than eight jurors
  161  determine that the defendant should be sentenced to death, the
  162  jury’s recommendation to the court must be a sentence of life
  163  imprisonment without the possibility of parole.
  164         (4) IMPOSITION OF SENTENCE OF LIFE IMPRISONMENT OR DEATH.—
  165         (a) If the jury has recommended a sentence of:
  166         1. Life imprisonment without the possibility of parole, the
  167  court must impose the recommended sentence of life imprisonment
  168  without the possibility of parole.
  169         2. Death, the court, after considering each aggravating
  170  factor found by the jury and all mitigating circumstances, may
  171  impose a sentence of life imprisonment without the possibility
  172  of parole or a sentence of death. The court may consider only an
  173  aggravating factor that was unanimously found to exist by the
  174  jury. The court may impose a sentence of death only if the jury
  175  unanimously finds at least two aggravating factors beyond a
  176  reasonable doubt.
  177         (b) If the defendant waives his or her right to a
  178  sentencing proceeding by a jury, the court, after considering
  179  all aggravating factors and mitigating circumstances, may impose
  180  a sentence of life imprisonment without the possibility of
  181  parole or a sentence of death. The court may impose a sentence
  182  of death only if the court finds that at least two aggravating
  183  factors have been proven to exist beyond a reasonable doubt.
  184         (5) ORDER OF THE COURT IN SUPPORT OF SENTENCE OF LIFE
  185  IMPRISONMENT OR DEATH.—In each case in which the court imposes a
  186  sentence of life imprisonment without the possibility of parole
  187  or death, the court must, considering the records of the trial
  188  and the sentencing proceedings, enter a written order addressing
  189  the aggravating factors set forth in subsection (7) found to
  190  exist, the mitigating circumstances in subsection (8) reasonably
  191  established by the evidence, whether there are sufficient
  192  aggravating factors to warrant the death penalty, and whether
  193  the aggravating factors outweigh the mitigating circumstances
  194  reasonably established by the evidence. The court must include
  195  in its written order the reasons for not accepting the jury’s
  196  recommended sentence, if applicable. If the court does not issue
  197  its order requiring a sentence of death within 30 days after the
  198  rendition of the judgment and sentence, the court must impose a
  199  sentence of life imprisonment without the possibility of parole
  200  in accordance with s. 775.082.
  201         (6) REVIEW OF JUDGMENT AND SENTENCE.—The judgment of
  202  conviction and sentence of death shall be subject to automatic
  203  review by the Florida Supreme Court and disposition rendered
  204  within 2 years after the filing of a notice of appeal. Such
  205  review by the Florida Supreme Court must have priority over all
  206  other cases and must be heard in accordance with rules adopted
  207  by the Florida Supreme Court.
  208         (7) AGGRAVATING FACTORS.—Aggravating factors are limited to
  209  the following:
  210         (a) The capital felony was committed by a person who was
  211  previously convicted of a felony violation of s. 794.011, and
  212  was under a sentence of imprisonment or was placed on community
  213  control or on felony probation.
  214         (b) The defendant was previously convicted of another
  215  capital felony or of a felony involving the use or threat of
  216  violence.
  217         (c) The capital felony was committed by a person designated
  218  as a sexual predator pursuant to s. 775.21 or a person
  219  previously designated as a sexual predator who had the sexual
  220  predator designation removed.
  221         (d)The capital felony was committed by a sexual offender
  222  who is required to register pursuant to s. 943.0435 or a person
  223  previously required to register as a sexual offender who had
  224  such requirement removed.
  225         (e) The defendant knowingly created a great risk of death
  226  to one or more persons such that participation in the offense
  227  constituted reckless indifference or disregard for human life.
  228         (f) The defendant used a firearm or knowingly directed,
  229  advised, authorized, or assisted another to use a firearm to
  230  threaten, intimidate, assault, or injure a person in committing
  231  the offense or in furtherance of the offense.
  232         (g) The capital felony was committed for pecuniary gain.
  233         (h) The capital felony was especially heinous, atrocious,
  234  or cruel.
  235         (i)The victim of the capital felony was particularly
  236  vulnerable due to age or disability, or because the defendant
  237  was in a position of familial or custodial authority in relation
  238  to the victim.
  239         (j) The capital felony was committed by a person subject to
  240  an injunction issued pursuant to s. 741.30 or s. 784.046, or a
  241  foreign protection order accorded full faith and credit pursuant
  242  to s. 741.315, and was committed against the petitioner who
  243  obtained the injunction or protection order or any spouse,
  244  child, sibling, or parent of the petitioner.
  245         (k) The victim of the capital felony sustained serious
  246  bodily injury.
  247         (8) MITIGATING CIRCUMSTANCES.—Mitigating circumstances are
  248  the following:
  249         (a) The defendant has no significant history of prior
  250  criminal activity.
  251         (b) The capital felony was committed while the defendant
  252  was under the influence of extreme mental or emotional
  253  disturbance.
  254         (c) The defendant was an accomplice in the capital felony
  255  committed by another person and his or her participation was
  256  relatively minor.
  257         (d) The defendant acted under extreme duress or under the
  258  substantial domination of another person.
  259         (e) The capacity of the defendant to appreciate the
  260  criminality of his or her conduct or to conform his or her
  261  conduct to the requirements of law was substantially impaired.
  262         (f) The age of the defendant at the time of the crime.
  263         (g) The existence of any other factors in the defendant’s
  264  background that would mitigate against imposition of the death
  265  penalty.
  266         (9) VICTIM IMPACT EVIDENCE.—Once the prosecution has
  267  provided evidence of the existence of two or more aggravating
  268  factors as described in subsection (7), the prosecution may
  269  introduce, and subsequently argue, victim impact evidence to the
  270  jury. Such evidence must be designed to demonstrate the victim’s
  271  uniqueness as an individual human being and the physical and
  272  psychological harm to the victim. Characterizations and opinions
  273  about the crime, the defendant, and the appropriate sentence may
  274  not be permitted as a part of victim impact evidence.
  275         (10)CONSTITUTIONALITY.—Notwithstanding s. 775.082(2), s.
  276  775.15, or any other provision of law, a sentence of death must
  277  be imposed under this section notwithstanding existing case law
  278  that holds such a sentence to be unconstitutional under the
  279  United States Constitution or the State Constitution. In any
  280  case for which the Florida Supreme Court or the United States
  281  Supreme Court reviews a sentence of death imposed pursuant to
  282  this section, and in making such a review reconsiders the prior
  283  holdings in Buford v. State and Kennedy v. Louisiana, and
  284  determines a sentence of death remains unconstitutional, the
  285  court having jurisdiction over the person previously sentenced
  286  to death must cause such person to be brought before the court,
  287  and the court must sentence such person to life imprisonment
  288  without the possibility of parole as provided in s. 775.082(1).
  289         (11)APPLICABILITY.—This section applies to any capital
  290  felony under s. 794.011 that is committed on or after October 1,
  291  2023.
  292         Section 3. Paragraph (n) is added to subsection (1) of
  293  section 924.07, Florida Statutes, to read:
  294         924.07 Appeal by state.—
  295         (1) The state may appeal from:
  296         (n)The sentence in a case of capital sexual battery on the
  297  ground that it resulted from the circuit court’s failure to
  298  comply with sentencing procedures under s. 921.1425, including
  299  by striking a notice of intent to seek the death penalty,
  300  refusing to impanel a capital jury, or otherwise granting relief
  301  that prevents the state from seeking a sentence of death.
  302         Section 4. Subsection (4) of section 921.137, Florida
  303  Statutes, is amended to read:
  304         921.137 Imposition of the death sentence upon an
  305  intellectually disabled defendant prohibited.—
  306         (4) After a defendant who has given notice of his or her
  307  intention to raise intellectual disability as a bar to the death
  308  sentence is convicted of a capital felony and an advisory jury
  309  has returned a recommended sentence of death, the defendant may
  310  file a motion to determine whether the defendant is
  311  intellectually disabled. Upon receipt of the motion, the court
  312  shall appoint two experts in the field of intellectual
  313  disabilities who shall evaluate the defendant and report their
  314  findings to the court and all interested parties prior to the
  315  final sentencing hearing. Notwithstanding s. 921.141, or s.
  316  921.142, or s. 921.1425, the final sentencing hearing shall be
  317  held without a jury. At the final sentencing hearing, the court
  318  shall consider the findings of the court-appointed experts and
  319  consider the findings of any other expert which is offered by
  320  the state or the defense on the issue of whether the defendant
  321  has an intellectual disability. If the court finds, by clear and
  322  convincing evidence, that the defendant has an intellectual
  323  disability as defined in subsection (1), the court may not
  324  impose a sentence of death and shall enter a written order that
  325  sets forth with specificity the findings in support of the
  326  determination.
  327         Section 5. Subsection (9) of section 921.141, Florida
  328  Statutes, is amended to read:
  329         921.141 Sentence of death or life imprisonment for capital
  330  felonies; further proceedings to determine sentence.—
  331         (9) APPLICABILITY.—This section does not apply to a person
  332  convicted or adjudicated guilty of a capital sexual battery
  333  offense under s. 794.011 or a capital drug trafficking felony
  334  under s. 893.135.
  335         Section 6. This act shall take effect October 1, 2023.